Holcombe v. Holcombe. he had destroyed the will, but that third person testifies that the testator never told him so. If the evidence of these two witnesses is believed, the fact of revocation is fully proved, for the courts of both the United States and England hold, as a well-established principle, that where a will is traced to the possession of the person who made it, and after his death it is found among his papers mutilated in such a manner as to indicate that he intended to revoke it, or it is not found at all, the law presumes that the testator mutilated or destroyed the will animo revocandi, 1 Redf. on Wills 3078; 33048. The decision of the case turns upon the question whether the evidence of these two witnesses is believed or not. They are the only persons now living who saw the will pass into the possession of the testator, and heard what he said concerning it. For this reason it is not possible to contradict their evidence, in its most vital point, by evidence drawn from other sources than themselves. The court should, therefore, deal with their evidence with the utmost caution, and scan it very closely. I have tried to do so, and after very full and careful consideration, I am obliged to say that I find nothing in their evidence nor in the other evidence in the case, which leads me to doubt the substantial truth of their story. While they are deeply interested in the result of this contest, and subject to the bias naturally incident to their position as parties litigant, they seem, in testifying, to have been frank and candid, and I have failed to find anything, either in their evidence or their conduct, which would justify a belief that they have deliberately stated anything that they knew to be untrue. There is nothing in their evidence so unnatural or improbable as to shock my credulity. The events they describe are just such as might naturally happen under the circumstances. Their conduct in connection with the will, as they describe it, may not appear now to have been as cautious or as circumspect as that of a person of unusual foresight might have been; but we are bound to remember that we are looking at their conduct in the light of subsequent events, but when they acted they could not foresee what would occur in the future. I think their evidence is entitled to credit. It is in one particular, Knowles v. Downie. at least, strongly corroborated. Its effect on my mind has been, notwithstanding the most rigorous tests I was able to apply, to convince me that the will passed into the testator's possession while he possessed sufficient capacity to revoke it. The establishment of this fact entitles the defendants, under the rule of law above stated, to a dismissal. But I do not think they are entitled to costs. The two who knew all about the circumstances under which the will got into the possession of the testator, were not frank and open in disclosing to the complainants what they knew. Their utterances were certainly vague and somewhat mysterious sufficiently so to justify suspicion. It is this part of their conduct which has created the strongest doubts in my mind as to the degree of credit which their evidence should receive. Their conduct naturally provoked suspicion and invited investigation, and, I think, therefore, that the complainants' bill should be dismissed without costs, each party paying their own. Messrs. J. G. Shipman & Son, for appellants. Mr. R. S. Kuhl, for respondents. PER CURIAM. Decree unanimously affirmed for the reasons given by the vice-chancellor. ALLEN KNOWLES, administrator of SAMUEL THOMPSON, deceased, appellant, υ. ANNIE DOWNIE, respondent. On appeal from a decree of the ordinary, whose opinion is re ported in Downie v. Knowles, 10 Stew. Eq. 513. : Simpson and Smith v. Lister. Mr. George S. Hilton and Mr. J. S. Barkalow, for appellants. Mr. Eugene Stevenson, for respondent. PER CURIAM. Decree unanimously affirmed for reasons given by the ordinary. JOHN H. BURRELL, JR., trustee &c., appellant, υ. WILLIAM MASSEY et al., respondents. On appeal from an order advised by Vice-Chancellor Bird. Mr. H. A. Drake, for appellant. Mr. B. Williamson and Mr. S. H. Grey, for respondents. PER CURIAM. Decree unanimously affirmed for reasons given by the vicechancellor. GEORGE F. SIMPSON and CHARLES B. SMITH, appellants, υ. EDWIN LISTER, respondent. On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Lister v. Simpson, 11 Stew. Eq. 438. Messrs. Coult & Howell, for appellants. The dispute in this case is between a judgment creditor and a chattel mortgagee for priority of position. The facts of the case 39 595 Case 2 62 386 39 595 Case 2 I 65 593 65 595 ! Simpson and Smith v. Lister. are, shortly, these: George F. Simpson was the owner of the stock of drugs in a drug store in Newark, and was carrying on the drug business at that place. On December 1st, 1881, he mortgaged the same to Edwin Lister, to secure the sum of $2,000. On October 17th, 1883, Lister took possession of all the contents of the store, and advertised the same for sale on October 23d, 1883. On October 20th, 1883, the appellant Smith recovered a judgment against Simpson in the Essex circuit court, on which execution was issued, by virtue of which execution a levy was taken by the sheriff of Essex on the contents of the drug store. The chattel mortgagee proceeded to sell the chattels levied on by the sheriff on October 23d, 1883, and the sheriff brought suit in trover against the mortgagee for the goods. Then the mortgagee filed his bill in chancery to restrain the action at law, and to procure a new foreclosure of the mortgage. The answer admits all the material facts set out in the bill, and the cause was brought to a hearing on the bill and answer only. The claim of the judgment creditor is that the chattel mortgage is void, as a fraud upon creditors, and, as against his levy, has no standing as a lien on the chattels levied on, and this claim is based on the fact that the mortgage provides that the mortgagor may sell the chattels mortgaged in the regular course of business, and thus divest himself and the mortgage, also, of all title to and interest in the chattels. We claim that this provision makes the mortgage ipso facto void, the argument being that the mortgagor retains not only the possession of the property mortgaged, but also the absolute control of it for his own benefit, and that while such an arrangement is no security to the pretended mortgagee, it is, if sustained, a shield to ward off the other creditors, and so hinders and delays them. Professor James O. Pierce has collected all the cases on the subject in his book, Fraudulent Mortgages of Merchandise, published by F. H. Thomas & Co., St. Louis, 1884, and has shown that the weight of authority is in favor of our insistment. Simpson and Smith v. Lister. The foundation of the rule, as we claim it, is Twyne's Case; and the rule has been laid down in the following English cases : Ryall v. Rowles, 1 Ves., Sr., 348, and 1 Wils. 260; Worseley v. De Mattos, 1 Burr. 467; Edwards v. Harben, 2 Term R. 287; Paget v. Perchard, 1 Esp. 205; Wordall v. Smith, 1 Camp. 332; Reed v. Blades, 5 Taunt. 212. There do not appear to be any recent English cases in which the exact point is involved or considered. There are recent cases which hold that retention of possession alone by the mortgagor is not conclusive evidence of fraud, but we find no case in which the absolute power of disposition for his own benefit by the mortgagor is an element. Martindale v. Booth, 3 B. & Ad. 498. The leading case on the subject in the United States is Robinson v. Elliot, 22 Wall. 513, in which Davis, J., declares a mortgage of such character to be fraudulent in law, and void as to other creditors. He says: "Both the possession and right of disposition remain with the mortgagors. They are to deal with the property as their own; sell it at retail, and use the money thus obtained to replenish their stock. There is no covenant to account with the mortgagees, nor any recognition that the property is sold for their benefit. Instead of the mortgage being directed solely to the bona fide security of the debts then existing, and their payment at maturity, it is based on the idea that they might be indefinitely prolonged. It hardly need be said that a mortgages, which, by its very term, authorizes the parties to accomplish such object, is, to say the least of it, constructively fraudulent." * * * The doctrine has been followed in Virginia-Lang v. Lee, 3 Rand. 410; Perry v. Shenandoah Nat. Bank, 27 Gratt. 755. In New York-Wood v. Lowry, 17 Wend. 492; Edgell v. Hart, 9 N. Y. 213; Mittnacht v. Kelley, 3 Keyes 407; Russell v. Winne, 37 N. Y. 591; Southard v. Benner, 72 N. Y. 424. In New Hampshire-Coburn v. Pickering, 3 N. H. 415; Putnam v. Osgood, 51 N. H. 192. In Ohio-Collins v. Myers, 16 Ohio 547; Freeman v. Rawson, 5 Ohio St. 1. In Minnesota -Chophard v. Bayard, 4 Minn. 533. |